SOCIAL SECURITY ISSUES ON MARITAL RELATIONSHIPS

AND SSI BENEFITS, PARTICULARLY “LIVING TOGETHER

AS HUSBAND AND WIFE”

TABLE OF CONTENTS

Social Security Federal Regulations 1 Social Security Program Operations Manual (POMS) 8 Social Security Rulings 18 Social Security Handbook (official) 25 Other Reported Cases 26 Social Security Holding Out Interview Form 27 SOCIAL SECURITY FEDERAL REGULATIONS

Subpart R—Relationship

AUTHORITY: Secs. 702(a)(5), 1612(b), 1614(b), (c), and (d), and 1631(d)(1) and (e) of the Social Security Act (42 U.S.C. 902(a)(5), 1382a(b), 1382c(b), (c), and (d) and 1383(d)(1) and (e)).

SOURCE: 45 FR 71795, Oct. 30, 1980, unless otherwise noted. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981.

20 CFR § 416.1801. Introduction.

(a) What is in this subpart. This subpart contains the basic rules for deciding for SSI purposes whether a person is considered married and, if so, to whom; whether a person is considered a child; and whether a person is considered another person's parent. It tells what information and evidence we need to decide these facts.

(b) Related subparts. Subpart D discusses how to determine the amount of a person's benefits; subpart G discusses what changes in a person's situation he or she must report to us; subpart K discusses how we count income; and subpart L discusses how we count resources (money and property). The questions of whether a person is Lillesand, Wolasky & Waks, P.L.

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married, to whom a person is married, whether a person is a child, and who is a person's parent must be answered in order to know which rules in subparts D, G, K, and L apply.

(c) Definitions. In this subpart—

Eligible spouse means a person—

(1) Who is eligible for SSI,

(2) Whom we consider the spouse of another person who is eligible for SSI, and

(3) Who was living in the same household with that person on—

(i) The first day of the month following the date the application is filed (for the initial month of eligibility for payment based on that application);

(ii) The date a request for reinstatement of eligibility is filed (for the month of such request); or

(iii) The first day of the month, for all other months. An individual is considered to be living with an eligible spouse during temporary absences as defined in § 416.1149 and while receiving continued benefits under section 1611(e)(1) (E) or (G) of the Act. Spouse means a person's husband or wife under the rules of §§ 416.1806 through 416.1835 of this part.

We and us mean the Social Security Administration. You means a person who has applied for or has been receiving SSI benefits, or a person for whom someone else has applied for or has been receiving SSI benefits.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995; 64 FR 31975, June 15, 1999; 65 FR 16815, Mar. 30, 2000]

WHO IS CONSIDERED YOUR SPOUSE

20 CFR § 416.1802. Effects of marriage on eligibility and amount of benefits.

(a) If you have an ineligible spouse—(1) Counting income. If you apply for or receive SSI benefits, and you are married to someone who is not eligible for SSI benefits and are living in the same household as that person, we may count part of that person's income as yours. Counting part of that person's income as yours may reduce the amount of your benefits or even make you ineligible. Section 416.410 discusses the Lillesand, Wolasky & Waks, P.L.

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amount of benefits and § 416.1163 explains how we count income for an individual with an ineligible spouse.

(2) Counting resources. If you are married to someone who is not eligible for SSI benefits and are living in the same household as that person, we will count the value of that person's resources (money and property), minus certain exclusions, as yours when we determine your eligibility. Section 416.1202(a) gives a more detailed statement of how we count resources and § 416.1205(a) gives the limit of resources allowed for eligibility of a person with an ineligible spouse.

(b) If you have an eligible spouse—(1) Counting income. If you apply for or receive SSI benefits and have an eligible spouse as defined in § 416.1801(c), we will count your combined income and calculated the benefit amount for you as a couple. Section 416.412 gives a detailed statement of the amount of benefits and subpart K of this part explains how we count income for an eligible couple.

(2) Counting resources. If you have an eligible spouse as defined in § 416.1801(c), we will count the value of your combined resources (money and property), minus certain exclusions, and use the couple's resource limit when we determine your eligibility. Section 416.1205(b) gives a detailed statement of the resource limit for an eligible couple.

(c) If you are married, we do not consider you a child. The rules for counting income and resources are different for children than for adults. (Section 416.1851 discusses the effects of being considered a child on eligibility and amount of benefits.) Regardless of your age, if you are married we do not consider you to be a child.

(d)(1) General rule: Benefits depend on whether you are married or not married at the beginning of each month. If you get married, even on the first day of a month we will treat you as single until the next month. If your marriage ends, even on the first day of a month, we will treat you as married until the next month.

(2) Exception: If you both meet eligibility requirements after your date of marriage or after your marriage ends. If, in the month that you marry, each of you first meets all eligibility requirements after the date of your marriage, we will treat you as an eligible couple for that month. If, in the month that your marriage ends, each of you first meets all eligibility requirements after the date your marriage ends, we will treat you as eligible individuals. (See subparts D and E regarding how your benefits will be prorated.)

Lillesand, Wolasky & Waks, P.L.

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[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 51 FR 13495, Apr. 21, 1986; 60 FR 16376, Mar. 30, 1995] 20 CFR § 416.1806. Whether you are married and who is your spouse.

(a) We will consider someone to be your spouse (and therefore consider you to be married) for SSI purposes if—

(1) You are legally married under the laws of the State where your and his or her permanent home is (or was when you lived together);

(2) We have decided that either of you is entitled to husband's or wife's Social Security insurance benefits as the spouse of the other (this decision will not affect your SSI benefits for any month before it is made); or

(3) You and an unrelated person of the opposite sex are living together in the same household at or after the time you apply for SSI benefits, and you both lead people to believe that you are husband and wife.

(b) if more than one person would qualify as your husband or wife under paragraph

(a) of this section, we will consider the person you are presently living with to be your spouse for SSI purposes.

[60 FR 16376, Mar. 30, 1995]

20 CFR § 416.1816. Information we need concerning marriage when you apply for SSI.

When you apply for SSI benefits, we will ask whether you are married. If you are married, we will ask whether you are living with your spouse. If you are unmarried or you are married but not living with your spouse, we will ask whether you are living in the same household with anyone of the opposite sex who is not related to you. If you are, we will ask whether you and that person lead other people to believe that you are husband and wife.

Lillesand, Wolasky & Waks, P.L.

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20 CFR § 416.1821. Showing that you are married when you apply for SSI.

(a) General rule: Proof is unnecessary. If you tell us you are married we will consider you married unless we have information to the contrary. We will also consider you married, on the basis of your statement, if you say you are living with an unrelated person of the opposite sex and you both lead people to believe you are married. However, if we have information contrary to what you tell us, we will ask for evidence as described in paragraph (c).

(b) Exception: If you are a child to whom parental deeming rules apply. If you are a child to whom the parental deeming rules apply and we receive information from you or others that you are married, we will ask for evidence of your marriage. The rules on deeming parental income are in §§ 416.1165 and 416.1166. The rules on deeming of parental resources are in § 416.1202.

(c) Evidence of marriage. If paragraph (a) or (b) of this section indicates that you must show us evidence that you are married, you must show us your marriage certificate (which can be the original certificate, a certified copy of the public record of marriage, or a certified copy of the church record) if you can. If you cannot, you must tell us why not and give us whatever evidence you can.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, 1987] 20 CFR § 416.1826. Showing that you are not married when you apply for SSI.

(a) General rule: Proof is unnecessary. If you do not live with an unrelated person of the opposite sex and you say that you are not married, we will generally accept your statement unless we have information to the contrary.

(b) Exception: If you are under age 22 and have been married. If you are under age 22 and have been married, to prove that your marriage has ended you must show us the decree of divorce or annulment or the death certificate if you can. If you cannot, you must tell us why not and give us whatever evidence you can.

(c) Exception: If you are living with an unrelated person of the opposite sex. (1) If you are living with an unrelated person of the opposite sex, you and the person you are Lillesand, Wolasky & Waks, P.L.

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living with must explain to us what your relationship is and answer questions such as the following:

(i) What names are the two of you known by?

(ii) Do you introduce yourselves as husband and wife? If not, how are you introduced?

(iii) What names are used on mail for each of you?

(iv) Who owns or rents the place where you live?

(v) Do any deeds, leases, time payment papers, tax papers, or any other papers show you as husband and wife?

(2) We will consider you married to the person you live with unless the information we have, including the answers to the questions in paragraph (c)(1) of this section, all considered together, show that the two of you do not lead people to believe that you are each other's husband and wife.

20 CFR § 416.1830. When we stop considering you and your spouse an eligible couple.

We will stop considering you and your spouse an eligible couple, even if you both remain eligible, at the beginning of whichever of these months comes first—

(a) The calendar month after the month you stopped living with your eligible spouse, or

(b) The calendar month after the month in which your marriage ends.

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995] 20 CFR § 416.1832. When we consider your marriage ended. We consider your marriage ended when—

(a) Your spouse dies;

(b) Your divorce or annulment becomes final;

Lillesand, Wolasky & Waks, P.L.

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(c) We decide that either of you is not a spouse of the other for purposes of husband's or wife's social security insurance benefits, if we considered you married only because of § 416.1806(a)(2); or

(d) You and your spouse stop living together, if we considered you married only because of § 416.1806(a)(3).

[45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995] 20 CFR § 416.1835. Information we need about separation or end of marriage after you become eligible for SSI.

(a) If you and your spouse stop living together. If you and your spouse stop living together, you must promptly report that fact to us, so that we can decide whether there has been a change that affects either person's benefits. You must also answer questions such as the following. If you cannot answer our questions you must tell us why not and give us whatever information you can.

(1) When did you stop living together?

(2) Do you expect to live together again?

(3) If so, when?

(4) Where is your husband or wife living?

(5) Is either of you living with someone else as husband and wife?

(b) Evidence of end of marriage—(1) Death. We will accept your statement that your husband or wife died unless we have information to the contrary. If we have contrary information, you must show us the death certificate if you can. If you cannot, you must tell us why not and give us whatever evidence you can.

(2) Divorce or annulment. If your marriage ends by divorce or annulment, you must show us the decree of divorce or annulment if you can. If you cannot, you must tell us why not and give us whatever evidence you can.

(3) Other reason. If your marriage ends for reasons other than death, divorce, or annulment, you must give us any information we ask you to give us about the end of the marriage. If you cannot, you must explain why you cannot. We will consider all of the relevant information to decide if and when your marriage ends. Lillesand, Wolasky & Waks, P.L.

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SOCIAL SECURITY PROGRAM OPERATIONS MANAUL

(POMS)

SI 00501.150 Determining Whether a Marital

Relationship Exists

Citations:

Social Security Act §1614(b) and §1614(d)

Regulations 20 CFR 416.1801 through 416.1835

A. When to use these instructions to determine the existence of marital relationships for Supplemental Security Income (SSI) purposes

Use the instructions in this section to determine the existence of a marital relationship for SSI purposes.

For information regarding same-sex marriages, refer to GN 00210.800, Same-Sex Marriages - Supplemental Security Income, and GN 00210.010, Interviewing Individuals with Claims Involving Same-Sex Relationships.

For information regarding transgender individuals, refer to GN 00305.005, Determining Marital Status.

B. When two individuals are considered married for SSI purposes

1. Opposite-sex marriages

Two opposite-sex individuals are married for SSI purposes if they are:

Legally married under the laws of the state where they make their permanent home; or

Married for Title II purposes; or

Living together in the same household and holding themselves out as an opposite-sex married couple to the community in which they live. See SI Lillesand, Wolasky & Waks, P.L.

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00501.152, Determining Whether Two Individuals Are Holding Themselves Out as a Married Couple, for more information.

2. Same-sex marriages

Two same-sex individuals are married for SSI purposes if they are legally married under the laws of the state where they make their permanent home. NOTE: We will not recognize that a claimant and a same-sex individual with whom he or she lives are married for SSI purposes because they are:

entitled to Title II benefits as same-sex spouses; or

in a non-marital legal relationship (e.g., a civil union, a domestic partnership); or

holding themselves out to the community as a married couple. C. When a marital relationship exists for SSI purposes 1. Accept an allegation about marriage

a. Opposite-sex marriages

Accept an individual's allegation that he or she is or is not married. If there is information to the contrary, follow instructions in this section to obtain evidence about marital status for SSI purposes.

b. Same-sex marriages

For allegations of a same-sex marriage, refer to GN 00210.800C to determine if the marriage can be recognized for SSI purposes.

2. Evidence of marriage

If evidence is needed, follow instructions in GN 00305.000, Proof of Marital Relationship. Lillesand, Wolasky & Waks, P.L.

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3. Married for Title II purposes

a. Opposite-sex marriages

Document the file to show the entitlement of one member of the couple to Title II benefits on the record of the other.

b. Same-sex marriages

We cannot recognize a same-sex couple as married for SSI purposes solely based on entitlement to Title II as a same-sex spouse.

4. Holding out as a married couple

a. Opposite-sex couples

Refer to SI 00501.152, Determining Whether Two Individuals Are Holding Themselves Out as a Married Couple, for more information.

b. Same-sex couples

We cannot recognize a same-sex couple as married for SSI purposes solely based on their holding themselves out to the community as a married couple. D. When two individuals are no longer considered married for SSI purposes

Two individuals are no longer married for SSI purposes as of the date that any of the following occurs.

Either individual dies.

They receive an issuance of a final decree of annulment or divorce.

Either individual begins living with a different person whom the agency would also recognize as a spouse. For more information, see SI 00501.150.G.1 in this section.

They change their permanent home to a state whose laws do not recognize their marriage.

An opposite-sex couple no longer hold themselves out as married. Lillesand, Wolasky & Waks, P.L.

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An opposite-sex couple are no longer married for Title II purposes. NOTE: If a marital relationship ends by death, divorce, or annulment in the same month it began, treat the marriage as if it had never existed. Otherwise, the termination of marriage is effective the month after the month of death, divorce, or annulment. E. Evidence that a marital relationship has ended

1. Death, divorce, annulment

Note the date and the event on a DROC screen, and indicate what evidence you obtained or explain why evidence is not available. 2. Living with different spouse

Document the file with relevant information.

3. Change in Title II “deemed spouse” determination Document the file with a copy of the Title II termination notice or MBR query showing the deemed spouse's ledger account file (LAF) code, if something indicates that we reversed a prior “deemed spouse” determination.

4. Opposite-sex couple no longer holding out

Refer to SI 00501.152, Determining Whether Two Individuals Are Holding Themselves Out as a Married Couple for more information if there is an indication that the opposite- sex couple are no longer holding themselves out as married. F. When the marital relationship applies to eligibility and computation of payments

For SSI purposes, two individuals are married for a month if they meet any of the criteria in SI 00501.150B in this section as of the first moment of the month. For the exceptions to the “first moment of the month” rule, see SI 00501.154, Determining When Couple Computation Rules Apply.

Lillesand, Wolasky & Waks, P.L.

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G. Special circumstances

1. If more than one individual could be considered a spouse For SSI purposes, we recognize as a spouse only a person with whom the claimant is living. It is not material that another person may also qualify as the legal spouse of either of the people who are living together.

For example, an SSI claimant may be married but living separately from someone who is his or her spouse according to state law, but we may recognize another opposite-sex individual in the household as the claimant’s holding out spouse for SSI purposes. 2. Couple resume living together

A marital relationship exists when two individuals resume living together after having lived together previously as a married couple. In such a case, we presume that the individuals are in a marital relationship unless they present evidence to the contrary. Evidence to the contrary includes evidence of a divorce or, in the case of an opposite- sex couple, the termination of a holding out relationship. For example, if a divorced couple resumes living together due to illness or for economic reasons with no intention of resuming a marital relationship, this represents evidence to the contrary. If two individuals who previously lived together as a married couple resume living together, review the facts of the case to make a new marital status determination.

If the couple are still legally married under the laws of the state where they make their permanent home, and they resume living together after having lived apart, they are a married couple for SSI purposes, regardless of the reason they resumed living together.

If the couple allege that they are legally separated, consider the couple to be married since a legal marriage still exists.

If the couple allege that they are divorced, obtain a copy of the divorce decree. Obtain signed statements from both individuals explaining why they are living together (e.g., illness, economic reasons). If they are an opposite-sex couple, follow instructions inSI 00501.152 to determine if they are holding themselves out to the community as married.

Lillesand, Wolasky & Waks, P.L.

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If an opposite-sex couple allege that they are no longer holding themselves out as married, follow instructions in SI 00501.152, Determining Whether Two Individuals Are Holding Themselves Out as a Married Couple. Example:

Marie and Patrick divorced several years ago. Recently, Patrick became ill. Marie, who is an SSI recipient, moved to Pat's home to provide care during his illness. Marie informed Social Security about the change of address. Patrick filed for SSI benefits and informed the claims representative about their divorce and the current living arrangement. Because Marie and Patrick are living together, the claims representative followed instructions in SI 00501.152 to determine if they are holding themselves out as married. Neither Marie nor Patrick presents them as married, and there is no indication of a holding-out relationship. Therefore, Patrick is an eligible individual. SI 00501.152 Determining Whether Two Opposite-

Sex Individuals Are Holding Themselves

Out as a Married Couple

A. Determining if a man and a woman are holding themselves out as a married couple

Use these instructions to determine if a man and a woman who live in the same household are considered married for supplemental security income (SSI) purposes because they hold themselves out as a married couple to the community in which they live.

IMPORTANT: Develop for holding out only in cases involving opposite-sex couples. Do not develop for holding out in cases involving same-sex couples. B. When not to develop for holding out by a man and a woman Do not ask about holding out if there is an obvious reason for the man and woman to live in the same household, other than as a couple. The following are examples.

They are in a family relationship (e.g., siblings). Lillesand, Wolasky & Waks, P.L.

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They have an employer-employee relationship such as for housekeeping or child care.

Their household arrangement is only for the purpose of sharing expenses. C. Procedure for determining if a man and a woman are holding themselves out as a married couple

1. Treatment of allegations

Obtain a signed statement as to whether the man and the woman hold themselves out to the community as a married couple. Treat the allegation in the statement as follows: a. Individual denies holding out as married, no evidence to the contrary Accept the allegation.

b. Individual alleges holding out as married

Obtain a signed statement from the other individual. If both allege holding out, accept the allegation.

c. Either individual denies holding out as a married couple, evidence to the contrary

Obtain the signed responses of both the man and the woman to the following questions. You may use Form SSA-4178, Marital Relationship Questionnaire, provided in SI 00501.153:

By what name or names are you known?

How do you introduce the other person to friends, relatives, or others?

How is mail addressed to you and to the other person?

Are there any bills, installment contracts, tax returns, or other papers showing you as a husband and wife?

Is the place where you live owned or rented by both of you or only one? Ask other questions if you think that will help clarify how the individuals present themselves to the community.

Lillesand, Wolasky & Waks, P.L.

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2. Holding out not indicated

Stop development if all the responses of both the man and the woman show that neither presents the relationship as a marital one. 3. Responses indicate possible holding out

If one or more of the answers by either the man or the woman indicate the possibility of a holding out relationship, obtain as many of the following items of evidence (grouped in order of probative value) as possible and make a written determination.

Mortgages, leases, property deeds, bank accounts, insurance policies, passports, tax returns, credit cards.

Information (preferably documents) from other government programs, such as Temporary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP), public housing, etc.

Magazine or newspaper subscription labels, personal mail.

Statements from relatives, close friends, or neighbors. 4. Holding out determination

In order for the agency to make a written determination that a man and a woman are holding themselves out as a married couple, consider the following:

The age and probative value of the evidence.

The role the individuals played in creating the evidence (e.g., signing a lease as a married couple).

The individuals' explanation regarding evidence that indicates holding out. 5. Case Code (CG) entry

If a holding out relationship exists, see SM 01005.525 and SM 01301.820 for the appropriate CG field entry.

D. Examples

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1. No holding out alleged; evidence to the contrary; holding out not established

Michael Stevens and Barbara Foster deny any marital relationship but also indicate that they rent an apartment together. The field office (FO) obtains an SSA-4178 (Marital Relationship Questionnaire).

The information shows that, although they share activities, they live together for economic reasons. They supply their bank statements, which show they do not have joint accounts.

The FO decides that the evidence, the responses on the SSA-4178, and the explanation about the information on the rental of the apartment support the no holding out allegation.

2. No holding out alleged; evidence to the contrary; holding out established

Kevin Anders and Kathryn Simms deny any marital relationship. They live in a house owned by Ms. Simms. The property tax records and mortgage are in Ms. Simms' name. The FO learns from a field contact that the neighbors refer to Ms. Simms as Mrs. Anders. The FO develops following the procedure inSI 00501.152C.1.c. (in this section). Ms. Simms admits that the neighbors know they are not legally married but refer to her as Mrs. Anders, and she does not correct them.

The responses on the SSA-4178 indicate that Mr. Anders and Ms. Simms filed tax returns as “married filing jointly” using the Anders name. They also have charge accounts in the Anders name. Based on this information and the available evidence, the FO decides that they are holding themselves out to the community as a married couple. 3. Mixed allegations; no holding out

Steve Garrett and Betty Sanders each receive SSI as eligible individuals. When they move in together, they report the change in their living arrangements. At the redetermination, Mr. Garrett signs a statement that they hold themselves out to the community as a married couple and plan to be married. Lillesand, Wolasky & Waks, P.L.

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When contacted, Ms. Sanders states she does not present their relationship to the community as that of a married couple and will not do so until they are married. Their apartment rental lease shows both names. There is no other information or evidence that indicates Ms. Sanders presents their relationship as that of a married couple. Since only one of the individuals presents the relationship to the community as that of a married couple, the FO decides there is no holding out and continues to treat them as two eligible individuals.

4. Holding out relationship ends; couple remain in the same household; no holding out

Alex Mathis and Alice Blake have lived together and held themselves out to the community as a married couple for 15 years. Mr. Mathis receives SSI benefits; Ms. Blake works. We deem Ms. Blake's income to Mr. Mathis.

Mr. Mathis contacts the teleservice center in June and reports that he no longer considers Ms. Blake to be his wife and wants his full SSI payment. He adds that he has met someone else but is temporarily remaining with Ms. Blake for financial reasons. The FO contacts Ms. Blake, who states that Mr. Mathis is living in the basement of the house and will move out as soon as he is financially able. Ms. Blake provides evidence that they dissolved all joint credit accounts. Based on this information, the FO determines that they are no longer considered holding out as married. 5. Same-sex couple were married under the laws of one state but live in another state that does not recognize their marriage; do not develop for holding out

Mark Johnson and Eric Morris were married in Connecticut, after the date that Connecticut began to permit same-sex marriages.

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